IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 343 of 1992 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= SUBHASH PARSHURAM SETH - Appellant(s) Versus MADHU MANCHERSINGH BHANDARI - Defendant(s) ========================================================= Appearance :
MR SV RAJU for Appellant(s) : 1, MRS KETTY A MEHTA for Defendant(s) : 1, ========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This Appeal under Section 28 of the Hindu Marriage Act is at the instance of a husband in a proceeding for divorce under Section 13(1) (a) of the Hindu Marriage Act, 1956 (for short, 'the Act') and is directed against the judgment and decree dated 4th May 1990 passed by the learned City Civil Judge, Ahmedabad in Hindu Marriage Petition No.293 of 1983, thereby dismissing the application filed by the husband for divorce on the ground of cruelty by the wife.
The case made out by the husband (hereinafter referred to as, 'the appellant') in the petition for divorce may be enumerated below, rather in detail in order to appreciate the allegations of cruelty in proper perspective :
The parties were married according to the Hindu rites and rituals on January 21, 1979 at Udaipur and in the said wedlock a son named Chaitanya was born on January 24, 1980.
As the appellant had a transferable job, the appellant and the respondent co-habited together as husband and wife at Delhi, Jaipur and at Ahmedabad. At the time of filing of the divorce application, the parties were residing together as husband and wife at Ahmedabad. After separation, the appellant started residing at Mumbai while the respondent resided at Udaipur.
Initially, for a few months after the marriage, the relation between the parties was normal with some minor problems, which the husband thought would vanish as time would pass and both of them would get adjusted in the conjugal rights.
It is the case of the appellant that after marriage, he was residing with respondent far away from his family members and, therefore, the respondent had no restraint of a joint family setup and no interference of any kind from any of the family members of the appellant.
After about one year from the date of marriage when the parties were at Jaipur, the behaviour of the respondent all of a sudden changed and became quarrelsome. The appellant was informed by the respondent that before marriage she was possessed with evil spirit affecting her brain and heart and for which her parents had given her treatment. The appellant was informed by the respondent that despite taking treatment, there was no improvement, as a result of which, the respondent was asked to wear a bracelet on her biceps. The appellant was told by the respondent that as a result of which she gets aggressive and starts fighting.
When the parties were at Jaipur, the respondent used to pick up quarrels at the top of a head without any justification and was in the habit of restraining the appellant from going to his office. The respondent also used to abuse and insult the appellant in presence of neighbours and other outsiders. The respondent used to insult parents of the appellant by using unsavoury language.
On September 26, 1980 i.e. when the son of the parties was about 9 months old, the parents of the appellant came to Jaipur. At that point of time, the respondent picked up quarrel with the parents of the appellant on the ground that the clothes which were given by the parents of the respondent for her son lying at Udaipur were not brought by her in-laws. According to the appellant, the respondent created a ruckus on this issue and almost behaved like a lunatic. The respondent also threatened that she would ruin the life of the appellant and will not allow any of the family members of the appellant to live in peace. The respondent used abusive language and used to address her in-laws as “kamine kutte”.
On or about November 7, 1980, the appellant and the respondent went to Mumbai to enjoy the festival of Diwali and stayed at the place of the elder brother of the appellant. While having dinner on that day, the respondent abruptly and without any rhyme or reason, asked the appellant to drop her at the house of respondent's aunty at Colaba, Mumbai. The appellant persuaded the respondent to wait for some time and that he would definitely drop her at her aunty's house after the dinner. At that point of time, all of a sudden, the respondent changed her mind and told the appellant that she wanted to go to Jaipur immediately and asked the appellant to drop her at the railway station. The respondent was in a very fiery mood and caught hold of the collar of the appellant and slapped the appellant. The respondent also twisted the arms of the appellant and inflicted blows.
All this ruckus was witnessed by the family members of the appellant. On that particular day of the incident, the respondent very severely bit the hand of the appellant. With the intervention of the family members, the appellant was saved but by that time he received good amount of thrashing at the hands of the respondent.
It is the case of the appellant that thereafter the respondent threatened to commit suicide with the child and thereby would pass on the entire blame on the family members of the appellant for which the appellant and the family members would have to face criminal prosecution.
The behaviour and the attitude of the respondent disturbed the appellant to a great extent. The appellant booked a lightening call to the parents of the respondent and the police was also informed. However, it is the case of the appellant that the respondent's parents never responded to the call and the aunty of the respondent at Colaba also refused to do anything in the matter.
The appellant thereafter left for Jaipur and the respondent was taken away by her younger brother. On December 21, 1980 the respondent came to Jaipur with her brother and once again started harassing the appellant.
Record reveals that the appellant preferred a suit for judicial separation in the District Court at Jaipur being Special Civil Suit No.2 of 1981 in January, 1981. However, with the intervention of the elders and the community people and further also taking into consideration the welfare of the child, the appellant permitted the respondent to stay with him as respondent apologized for her misdeeds and bad behaviour with the appellant.
As respondent apologized for the foul language used by her and assured that she would not behave in such a manner in future, the appellant once again accepted the respondent at the matrimonial home. The petition for judicial separation which was filed at Jaipur was withdrawn.
However, despite all sincere efforts made by the appellant to make the respondent as comfortable as he could, the respondent was not at all satisfied with the endeavour of the appellant and went on picking up quarrel with the appellant. It is also the case of the appellant that the respondent used to ill-treat the child, causing immense mental torture to the appellant. The appellant thereafter came to be transferred to Ahmedabad and accordingly the parties started living together at Ahmedabad. In view of incessant harassment and cruelty meted out to the appellant by the respondent, the appellant was constrained to lodge police complaint on July 10, 1983 and also addressed a letter dated July 17, 1983 to the father of the respondent informing him about the abnormal behaviour of the respondent. However, the father of the respondent turned a blind eye to the complaint made by the appellant and avoided to give any reply to the letter of the appellant. Thereafter, the appellant once again addressed a letter dated August 7, 1983 by registered post, to which a very evasive reply was given by the father of the respondent. A third letter was addressed on August 20, 1983 by the appellant to the father of the respondent in this regard. Ultimately, the respondent left the house of the appellant on or about August 20, 1983 and started residing with her parents. Thus, the incidents of cruelty cited by the appellant can briefly be summarised as under :
(i) the appellant was wrongfully restrained from going out of the house and was not even allowed to go to the office and attend his work;
(ii) the respondent assaulted the appellant several times;
(iii) the respondent used to walk out of the house on several occasions without any valid or genuine reason and used to return very late at night;
(iv) many a time the respondent insisted that the appellant should let her go out and leave her with her bag and baggages, and on inquiry as to where the respondent wanted to go, the respondent never used to give proper reply.
(v) The respondent was in the habit of hurling utensils and tearing clothes. The respondent was in the habit of putting off lights when the appellant was doing his work or reading and thereby used to cause immense mental harassment and torture;
(vi) The respondent used to switch off the fan when the appellant would go to sleep at night;
(vii) The respondent used to cook food only for herself and refuse to serve food to the appellant thereby forcing the appellant to dine at a restaurant.
(viii) The respondent had the habit of abusing and threatening the appellant in presence of neighbours and other family members and hence, no one wanted to come at the house of the appellant, causing immense mental agony to the appellant.
The appellant was left with no other option but to file Hindu Marriage Petition in the City Civil Court at Ahmedabad and prayed for a decree of divorce on the ground of cruelty under Section 13 of the Act. The appellant in the alternative also prayed for a decree of judicial separation from the respondent and sought for the custody of the son born in the wedlock.
The suit was contested by the wife by filing written statement, thereby denying the material allegations made in the petition for divorce and her defence may be epitomized thus :
(1) The appellant has suppressed the material facts and has concocted a bogus story and by misleading the Court has tried to win the sympathy of the Court and the petition suffers from suppressio veri and suggestio falsi and on this ground alone, the petition is required to be rejected in limine.
(2) The appellant has not come with clean hands and has filed a petition to hide his own wrong deeds by throwing mud on the respondent and with a malafide intention to drive out the respondent and his son from his house and, therefore, the petition is required to be rejected with exemplary costs to set an example to refrain the appellant from harassing a pious and devoted wife like the respondent.
(3) The respondent has denied the allegations that she possesses any abnormality and has also denied the allegations as regards insulting the parents of the appellant when they arrived at Jaipur in September 1980.
(4) She categorically denied the allegations of misbehaving at Mumbai on November 7, 1980 as alleged. She has denied the allegations of biting the appellant or using abusive language against the appellant or his parents.
(5) The respondent has alleged that the truth is otherwise and it is the appellant who has caused immense pain and suffering, which ultimately compelled her to leave the matrimonial home. The main allegations of the respondent are that the appellant used to treat her cruelly as she was not able to give sufficient dowry to the appellant at the time of their marriage.
(6) The respondent's case is that she hails from a Jain family of Rajasthan and is an M.Sc. Whereas, the appellant is a B.Sc. At the time of betrothal it was agreed that the father of the respondent would give 20 tolas of gold, but after the marriage when the respondent went to her in-laws' place they were dissatisfied with 21 tolas of gold as they alleged that the father of the respondent had promised 25 tolas of gold.
(7) It is the case of the respondent that the appellant and his family members made it very clear that till the father of the respondent fulfilled the promise of dowry the respondent would not be allowed to go to her father's place and that is the reason why Chaitanya was born at the house of her in-laws. Even thereafter the respondent persuaded her father to give her four more tolas of gold and after delivery in January 1980, respondent's father gave her four more tolas of gold. At that point of time, the appellant took objection that four grams of gold was less and, therefore, once again the father of the respondent was pushed to the wall to give additional gold to the family of the appellant.
(8) Under one false pretext or the other the respondent was harassed by the appellant and his family members. After the birth of the child in January 1980 when respondent reached her matrimonial home, she was told by her in-laws that things were not as per their expectation. On several occasions the appellant used to beat the respondent. The respondent denied the fact that she left the matrimonial home on August 20, 1983. On the contrary, the respondent asserted that on August 20, 1983 the appellant had come with the respondent with their child at Udaipur for the festival of Rakshabandhan. They came together at Udaipur and the appellant asked the respondent to stay at her father's house as the appellant had to go for some work on a tour and he would pick up the respondent within a short time. The appellant came back to Udaipur after a month and stayed together with the respondent for 3 to 4 days and once again left for tour and asked the respondent to reside at her parents' house on the assurance that the respondent would be taken back within a week but the appellant failed to turn up. On inquiry, it was revealed that the appellant was not interested to live with the respondent and discharge his marital obligation. The respondent was forced to stay at her parents' place otherwise she was always ready and willing to perform her part of marital obligation. The appellant has no love or affection for the son Chaitanya. In fact, the appellant never cared for the child.
(9) A specific ground was taken in the written statement that the petition is not maintainable for the reason that it is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure as the previous petition on the same grounds had been withdrawn and hence the ground of cruelty alleged against the respondent even if established and proved, would stand condoned.
(10) The entire petition and the contentions do not fall within the ambit of Section 13 of the Hindu Marriage Act and more particularly when a false story has been created to suppress his own wrong, the appellant is not entitled to the reliefs as prayed for by him.
The learned trial Judge, on the basis of the pleadings of both the parties, proceeded to frame the following issues at Exh.29 :
(1) Whether the petitioner proves that after solemnisation of the marriage, the respondent has treated him with cruelty, which entitles him to the decree of divorce ?
(2) Whether the respondent proves that after solemnisation of the marriage she was treated with cruelty by the petitioner which has forced her to leave the matrimonial home and hence the petitioner is not entitled to claim the relief prayed for by him ?
(3) Whether the petition is bad for want of jurisdiction ?
(4) Whether the petition is barred under Order-2 Rule-2 of the Code of Civil Procedure ?
(5) Whether it is proved that in view of the previous petition filed by the petitioner the cruelty stands condoned ?
(6) Whether the petitioner proves that he is entitled to custody of the minor son ?
(7) Whether there is any legal impediment against granting the relief sought for under Section 23 of the Hindu Marriage Act, 1956 ?
(8) What order and decree ?
The appellant examined the following witnesses in support of his case :
(1) Himself at Exh.36
(2) Deviprasad Khaitan at Exh.94
(3) His father Parsuram Chhaganlal Sheth at Exh.95.
On behalf of the respondent-wife, oral evidence of the following witnesses was led :
(1) Herself at Exh.120
(2) Her father Manoharsinh Govindsinh Bhandari at Exh.160
(3) Shyambihari Devkinandan Sharma at Exh.169
(4) Taruna Chimanlal Shah at Exh.170
(5) Buddhisagar Ranjitlalji (uncle of the appellant) at Exh.176
(6) Bahotlal Kalulal Nahak at Exh.181
(7) Surya Navinchandra Kapadia at Exh.187
(8) Tejban Kashiram Talwar at Exh.194 The learned trial Judge answered the issues based on the findings as under :
(1) Issue No.1 : In the negative.
(2) Issue No.2 : In the affirmative.
(3) Issue No.3 : In the negative.
(4) Issue No.4 : In the affirmative.
(5) Issue No.5 : In the affirmative.
(6) Issue No.6 : Does not arise for consideration.
(7) Issue No.7 : Does not survive.
(8) Issue No.8 : As per the final order.
Thus, the learned trial Judge, by her judgment and decree impugned herein, dismissed the suit with a finding that the ground of cruelty had not been proved and rather the wife succeeded in disproving the case of the husband.
Being dissatisfied, the husband has come up with the present Appeal.
In this Court, on the request of the learned counsel appearing on behalf of the respondent-wife, we tried to have reconciliation between the parties and accordingly we persuaded the husband to accept his wife and live a peaceful life, more particularly, taking into consideration the age of the parties. The appellant is almost around 65 years of age and the respondent-wife is also almost aged about 62 years. Their son Chaitanya is a married man having one child. Chaitanya all throughout stayed with respnodent i.e. his mother, and as on today also, the respondent resides with her son Chaitanya. Inspite of our best efforts, our endevour for reconciliation failed and in the end, we heard the Appeal on merits.
Mr.Chetan Pandya, learned counsel appearing on behalf of the appellant has severely criticized the order passed by the learned trial Judge and contended before us that the Court below, while dismissing the suit for divorce, did not follow the well-accepted principles which are required to be pursued in dealing with the allegations and counter-allegations and also ignored the provisions of the Evidence Act. According to Mr.Pandya, the sum and substance of the allegations made by his client in a petition for divorce was that the behaviour of the wife was abnormal and she did not hesitate to raise her hands on the appellant, and that too, in presence of family members and neighbours.
According to Mr.Pandya, the learned trial Judge committed substantial error of law in rejecting the petition being barred under Order 2, Rule 2 CPC and under Order 23, Rule 1 CPC.
Thirdly, Mr.Pandya contended that the learned trial Judge having observed in the judgment that the appellant and the respondent since January 1979 has not lived together for a single day, ought to have granted the relief as prayed for and should have dissolved the marriage. Mr.Pandya also contended that the learned trial Judge below failed to appreciate that in view of unconditional apology tendered by the respondent, the appellant had, as a gesture of goodwill and in the interest of the child and himself, withdrew the petition for judicial separation, which was filed in the Court at Udaipur with a hope that the respondent would realize the mistakes committed by her and would not repeat the same in future. Mr.Pandya further contended that the learned trial Judge committed substantial error in not appreciating an important question of fact that the allegations levelled by the respondent as regards the demand of dowry were baseless and without any evidence in this regard. According to him, the finding of the learned trial Judge as regards the demand of dowry is based on inferences and conjectures. Mr.Pandya further contended that the learned trial Judge has not at all dealt with the incident which occurred at Mumbai, wherein the respondent misbehaved with the appellant and went to the extent of biting the appellant, for which medical treatment was also given to the appellant. Mr.Pandya vehemently attacked the evidence of PW5 Buddhisagar Ranjitlalji who happens to be the brother of the appellant's mother. PW5 has been examined by the respondent though he happens to be the uncle of the appellant. This witness has not supported the theory of the appellant as regards the harassment and cruelty at the end of the respondent though he happens to be the uncle of the appellant. Mr.Pandya submitted that the learned trial Judge ought not to have given undue importance to the deposition of this witness as this witness has personal axe to grind against the appellant and his family members and that is the reason why he willingly agreed to depose on behalf of the respondent. Mr.Pandya further contended that the evidence of PW8 examined by the respondent at Exh.194 ought not to have been accepted as a gospel truth, thereby discarding the entire evidence, oral as well as documentary, led by the appellant.
According to Mr.Pandya, PW8 has deposed that the appellant used to assault the respondent but the say of PW8 is not believable because PW8 hardly used to stay at home as for most of the time he remained on high seas at Mumbai for the purpose of employment.
Lastly, Mr.Pandya contended that it is the cumulative effect of all the acts and conducts which have to be taken into consideration for finding out that the behaviour of the erring wife falling within the ambit of cruelty as envisaged under Section 13(1)(ia) of the Act.
Per contra, Mrs.Ketty A.Mehta, the learned senior counsel appearing on behalf of the respondent-wife has, on the other hand, opposed the aforesaid contentions of Mr.Pandya and has contended that in this case, the learned trial Judge, on consideration of the entire materials on record, by a detailed judgment having dismissed the suit, this Court should not interfere with the said finding of fact based on proper appreciation of the evidence on record.
Mrs.Mehta contends that the onus is on the appellant-husband to prove his case and in this case the husband could not discharge his burden. Mrs.Mehta further contended that considering the oral evidence of the witnesses who have been examined on behalf of the respondent-wife, it is established beyond doubt that it was the appellant-husband who was harassing and treating the respondent cruelly by demanding more dowry. Mrs.Mehta submitted that there is cogent, convincing and overwhelming evidence to suggest that the appellant-husband is trying to take advantage of his own wrong and has not come before the Court with clean hands suppressing many material facts.
Mrs.Mehta submitted that this is a fit case where the decree for divorce should be refused. Mrs.Mehta thus prays for dismissal of the Appeal.
Therefore, the question that falls for our determination in this Appeal is, whether the Court below was justified in dismissing the suit for divorce filed by the husband on the ground of cruelty and desertion.
Before we proceed to undertake the exercise of analysing the rival contentions of both the parties, we would like to take into consideration important pieces of oral evidence which have been led by both the sides :
(1) Oral evidence of appellant-husband PW1 (Exh.36):
The appellant has examined himself as PW1 at Exh.36. In his examination-in-chief, he has reiterated what has been stated in the plaint. Therefore, we need not look into the examination-in- chief in detail. However, there are some admissions in his cross- examination which we would like to look into. The appellant in his cross-examination has stated that there is no custom of dowry in their community. However, at the second breath he admits that it is true that at the time of marriage, as per the custom, there is some give and take. He has further deposed that as per his knowledge the custom of dowry is not compulsory in their community, however, some may demand for dowry and some may not. He has denied the suggestion that the time of his marriage he had accepted dowry at the end of parents of the respondent. The appellant has also admitted that the financial condition of his in-laws was not very sound. The appellant has also admitted that most of the time when he stayed at Delhi the respondent used to take due care of him and used to pay attention to household duties like preparation of food, etc. But, at times, respondent used to be very negligent. The appellant has also stated in his cross- examination that it is true that as and when the family members and relatives of the appellant would come at their house, respondent used to serve them with food. He has also admitted that it is true that the respondent had no ill-feelings for his parents when they were at Delhi and the parents of the appellant left for Udaipur happily. The appellant has also admitted that after the birth of Chaitanya when respondent returned to her matrimonial home at Udaipur, she came with gifts. He has admitted that the parents of the respondent gifted a gold chain, leg-bracelet, a baby pram, toys for the newly born son. He has also admitted that the day he decided to withdraw the petition for judicial separation filed at Udaipur, the appellant and the respondent reached to an amicable settlement and decided to bury their differences. He has stated that it is true that thereafter there were no differences between them. He has further stated that it is true that he himself and his family members welcomed the respondent. He has also deposed that when he accepted the respondent, he did so by forgetting the past. He has also deposed that at the time of birth of their son Chaitanya the doctors diagnosed some problem with the urinary tract and had to undergo a surgery. He has deposed that the respondent had taken extremely good care of the child. As regards the incident of assault as alleged by the appellant, questions were put to him in cross-examination and to such questions the appellant deposed that he is not able to recollect the month of the incident or the date of the incident. He has denied the allegations of having hit the respondent very badly on her eye, as a result of which the eye of the respondent had got swollen. He has also denied that as a result of which the blood pressure of respondent shooted and she fell unconscious. He admits that it is true that no medical treatment was given by him to the respondent. He also admits that he had spoken to the respondent in this regard but the respondent told him that there was nothing wrong with her. The other suggestions were denied by the appellant.
(2) PW2 – Deviprasad Khaitan (Exh.94):
This witness happened to be the next-door neighbour of the appellant and the respondent when they were residing at Maheswari Apartments, Nr.Subhash Bridge at Ahmedabad. This witness has deposed that the appellant used to stay at home for 15 days and for next 15 days he used to be on tour. Frequent quarrels used to ensue between the appellant and the respondent. He used to hear the voice. This witness has deposed that one day he found that the appellant and the respondent were quarreling and the respondent was hurling some articles on the appellant. This witness has further deposed that in his presence the respondent hurled an empty box on the appellant. This witness has also deposed that the respondent picked up a tricycle of her son and tried to hit the appellant but the respondent did not actually hit the appellant.
As and when quarrel used to ensue, the appellant and the respondent used to call the witness being the next-door neighbour. This witness has further deposed that he used to explain to the respondent that being wife she should not lay any physical assault on the husband. But as and when he tried to explain, the respondent used to feel bad. This witness, in his examination-in-chief has further deposed that once he heard the appellant crying in his house and thereafter he learnt that the respondent had given fisty cuffs on the appellant. However, he has said that he has not seen this with his eyes. He has also deposed that he requested one another resident of the society named Ghanshyambhai to take the appellant to the hospital for medical treatment as the appellant was unable to ride the scooter. In the cross-examination of this witness, the credibility has been tried to be impeached by putting a suggestion that he has deposed in favour of the appellant because the son of this witness was able to secure a job with Hindustan Lever Limited with the help of the brother of the appellant. This witness, in his cross-examination, has admitted this fact that it is true that the appellant and his brother had promised to secure a job for his son. This witness has denied the suggestion that at the time of marriage of his daughter, the appellant and his brother had extended financial assistance. This witness has gone to the extent of deposing that if the respondent is out of station, the appellant used to have food at the house of the witness. He has further submitted that he is of the belief that even if there is some harassment at the house of the in-laws, the wife should bear the same and should not complain. He has further stated that he does not remember the date, the month, the time, on which he had witnessed the respondent hurling an empty box on the appellant. He has further stated that he had no idea what was the apple of discord between the appellant and the respondent. He has admitted that till the time the appellant and the respondent stayed at Maheswari Apartments, the respondent used to perform her household work efficiently. He has deposed that the parents of the appellant also used to come and stay with them in the flat.
(3) PW3 Parsuram Chhaganlal Sheth (Exh.95):
This witness happens to be the father of the appellant. This witness, in his examination-in-chief, by and large, has reiterated what has been averred in the plaint. However, in his cross- examination he has admitted that at the time of betrothal ceremony there is a custom in the community that money is being given to the bridegroom as well as to the guests of the bridegroom. He has also admitted that there is a custom of give and take in the community. He has tried to explain the nature of the custom by stating that the family of the bride would give money and clothes to the family of the bridegroom. He has also admitted that at the time of marriage, the appellant was given a gold chain but has no idea as regards the weight of the gold chain. He has denied to the suggestion that as the respondent was unable to get sufficient amount of dowry she was not permitted to deliver her child at her parents' place. However, this witness has accepted the fact that ordinarily a girl would deliver her first child at her parents' place. This witness has further deposed that it is not true to say that the respondent used to quarrel with the appellant at Ahmedabad. He has further deposed that he has no idea about anything regarding the complaint to which he has referred to in paragraph 8 of his examination-in-chief. He has deposed that he has no idea as to what had happened on August 20, 1983.
(1) Oral evidence of respondent-wife PW1 (Exh.120):
So far as the examination-in-chief is concerned, she has reiterated what has been her stand in the written statement. This witness has denied all the suggestions imputing harassment and cruelty at her end towards the appellant- husband. She has also denied about the incidence which occurred at Mumbai.
(2) On behalf of the respondent, PW2 Manoharsinh Govindsinh Bhandari (Exh.160) has been examined. This witness happens to be the father of the respondent. This witness has deposed that after the engagement of the appellant and the respondent, they had gone to the house of the appellant and had a talk with the father of the appellant. At that point of time, he had made it very clear that he will be able to give 20 tolas of gold and in the ceremony of tilak he would be able to give Rs.5,000=00 towards the dowry. He has further deposed that thereafter the father of the appellant took him to one Laherilalji who happens to be the uncle of the father of the appellant and Laherilalji informed him that the amount of Rs.5,000=00 was too paltry an amount and minimum Rs.7,000=00 must be given. At that point of time he was also told that he would have to give atleast 25 tolas of gold. This witness has deposed that at that point of time he informed the father of the appellant that it was not within his capacity to give 25 tolas of gold. He has further deposed that after the marriage, he managed to give 21 tolas of gold along with a fan, a steel cupboard, 30 pairs of clothes, etc. He also gave Rs.5,000=00 for the other family members of the appellant. He has also deposed about the indifferent behaviour of the family members of the appellant with them. He has also denied the allegations as regards the respondent being possessed with evil spirit or wearing a bracelet on her biceps.
(3) Respondent has examined PW3 Shyambihari Devkinandan Sharma. This witness has deposed that she knows the entire family of the appellant as well as the respondent. He has also deposed that he was present at the time of marriage of the appellant and the respondent. As and when he used to go at the house of the appellant, he used to find the respondent very sad and had also witnessed tears in her eyes. He felt that something was wrong and when he used to inquire with the respondent, she used to quietly tell me that everything was fine. This witness realized that the life of the respondent was not happy at her matrimonial home. He tried to inquire with the appellant but the appellant told him that it was a personal problem between husband and wife and he should not interfere. This witness has further deposed that as and when he visited the house of the parties, he noticed signs of beating on the body of the respondent. He has always found the respondent to be a very quiet and gracious lady, whereas the appellant was always found to be in a fiery mood.
(4) PW4 – Taruna Chimanlal Shah has been examined by respondent at Exh.170. This witness is a social worker working with an institution for the protection of women. This witness has deposed that the respondent had filed a complaint of cruelty and harassment against the appellant. She produced the complaint at the time of her examination-in-chief at Exh.171/1.
(5) PW5 – Buddhisagarji has been examined at Exh.176. This witness happens to be the uncle (Mama) of the appellant. He has deposed that being uncle of the appellant, he knows both the families very well. He confirms about payment of Rs.7,000=00 at the time of marriage. He also deposed that initially the father of the respondent was to pay Rs.5,000=00 but the family members of the appellant insisted for Rs.7,000=00 and, therefore, he was compelled to make arrangement for Rs.7,000=00. This witness also confirms as regards giving 21 tolas of gold. He has deposed that one can understand that the father of the appellant may behave unbecoming of a good human being or a good father-in-law but how could the appellant as his son could behave with his wife in a manner unbecoming of a husband. He has deposed that many a time he tried to explain and persuade the appellant to treat the respondent with respect and should not often quarrel on small trivial issues. He has also deposed that he used to explain the appellant that the respondent is a very educated lady. He has also deposed that once he saw that the brother of the respondent came to pick her up but the appellant and his father refused to send the respondent with her brother.
(6) PW6 – Bahotlal Kalulal Nahak has been examined by the respondent at Exh.181. This witness also happens to be a relative of the appellant. This witness has deposed that he knows the respondent personally as a very obedient, dedicated lady and she does not possess any abnormality as alleged by the appellant. This witness has also confirmed by deposing as regards the payment of Rs.7,000=00 and payment of 25 tolas of gold.
(7) PW7 – Surya Kapadia has been examined at Exh.187. This witness was working with Jyoti Sangh, an institution for the protection of women, between 1981 and 1986. The object of this institution was to amicably resolve the differences between the husband and the wife. She has deposed that on March 11, 1983 the respondent had come at the institution and had lodged a complaint against her husband i.e. the appellant. She has further deposed that the complaint was written/dictated in Hindi, which was translated in Gujarati and, thereafter, was taken down. She has produced the original complaint at Exh.171. By and large, there is no denial to this piece of evidence by the appellant through his cross-examination.
(8) Lastly, PW-8 Tejben Kashiram Talwar has been examined at Exh.194. This witness is an independent witness. He is no way connected or related with either of the parties. This witness has deposed that he is a resident of Maheswari Apartments and at the relevant point of time the appellant and the respondent were also residing in the same Apartments. He has deposed that he has to pass through the flat of the appellant and the respondent while reaching his flat. He has also deposed that many a time the appellant and the respondent used to come at his house. There was friendship between his son Vicky and the son of the appellant and the respondent Chaitanya. He has deposed that many a time fight used to ensue between the appellant and the respondent. In clear terms, he has deposed that the appellant used to physically assault the respondent. He has further deposed that he has heard the appellant telling the respondent that why she has not brought enough dowry at the time of marriage and that she must get additional dowry from her parents' house, otherwise she will be treated with cruelty. He has deposed that once the appellant assaulted the respondent on her eye, as a result of which, the entire eye of the appellant got swollen. On that day of the incident, the respondent stayed at the house of this witness for the whole day. As and when the appellant and the respondent used to fight, their son Chaitanya used to cry and used to come down at the house of this witness. This witness has further deposed that many a time he has explained to the appellant not to treat the wife cruelly and should live a peaceful life. This witness has also deposed that as and when the father of the appellant used to come, fight used to ensue between them. He has further deposed that the parents of the appellant used to come for 15 days. He has deposed that the respondent used to do all household works. The respondent used to maintain cordial relations even with the neighbours. Many neighbours in the society tried to explain and persuade the appellant but immediately thereafter the appellant used to start fighting with the respondent. In the cross-examination by the appellant, the appellant has tried to impeach the credibility of this witness by alleging that he has deliberately deposed in favour of the respondent and against the appellant because he has good relations with the father of the respondent.
On overall re-appreciation and reevaluation of the evidence on record, we find that the appellant has tried to take advantage of his own wrong. Independent witnesses have deposed that the appellant used to treat the respondent cruelly and the witnesses have also deposed as regards the act of physically assaulting the respondent. We are convinced from the evidence on record that there was a dispute between the appellant and the respondent as regards the dowry, for which the appellant was treating the respondent with cruelty. We have noticed, on going through the impugned judgment, that the learned trial Judge has taken the view that when the appellant withdrew the petition for judicial separation filed at Udaipur unconditionally without obtaining any leave of that court under sub- rule 3 of Rule 1 of Order 23 of CPC, a fresh petition for divorce on the same cause of action was not maintainable. The learned trial Judge tried to take support of the principle of condonation of cruelty and the effect of the same.
We are in agreement with learned advocate Mr.Pandya to this extent that the petition could not have been rejected only on this ground. In a proceeding for divorce on the ground of cruelty under Section 13(1)(ia), in view of Section 23(1)(b) if the court is satisfied that the husband has not, in any manner, condoned the cruelty then, but not otherwise, the court shall grant relief in question. As such, the question of condonation has to be examined by the Court even though the same has not been pleaded as a defence by the respondent. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be two things : (i) forgiveness; and (ii) restoration.
As to what constitute forgiveness, would apparently depend upon the facts of each case. Thus, only because the appellant withdrew the application for judicial separation which was filed at Udaipur by itself will not constitute an act of condonation precluding the appellant from filing a fresh petition for divorce on a fresh cause of action.
To apply the principles contained in the provisions under Order 23, Rule 1 CPC, it would be absolutely essential that “the subject- matter” of the two litigations in question must be the same. The relevant provision in sub-rule(3) of Order 23 runs as follows :-
“(3) Where the plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in sub-rule(2), he shall be liable.... and shall be precluded from instituting any fresh suit in respect of such subject-matter...”
The phrase “subject-matter” as contained in this sub-rule (3) has caused certain difficulties of construction. But it has now been clarified that unless the relief claimed in the previous suit is the same and alike as the relief claimed in the subsequent suit, the subject- matters of the two litigations must be held to be different.
In taking this view, we are fortified by a decision of the Bombay High Court in the case of Rakhmabai Piraji Sapkal v/s. Mahadeo Narayan Bundre, reported in AIR 1917 Bom 10. The Division Bench observed as under :
“...The question is whether the previous suit was a suit for the same subject-matter as the present suit within the meaning of O.23, R.1. We are of opinion that 'subject-matter' means, to use the words of O.1, R.1, 'the series of acts or transactions alleged to exist giving rise to the relief claimed.”
“...if 'subject-matter' is to be taken to be 'the cause of action' in the sense in which it is usually understood, namely the bundle of facts which have to be proved in order to entitle the plaintiff to relief.”
There is no dispute between the parties that a suit filed at Udaipur was only for judicial separation, being No.2 of 1981. There is no dispute as regards the fact that the acts of cruelty alleged in that suit have been relied upon for the relief of divorce claimed in the present suit. As relief of divorce was not claimed in the previous suit, we are unable to hold that the present suit is in respect of the subject matter for which the previous suit had been instituted. We are unable to subscribe to the findings recorded by the trial Court in this regard that on the ground of estoppel the plaintiff was not entitled to rely upon the previous acts of cruelty which were alleged in the previous suit.
To the extent aforesaid, we find that the learned trial Judge did commit an error. However, this will not help the appellant as there is no cogent, convincing and overwhelming evidence on record to suggest that it was the respondent who was at fault. Even assuming for the moment that at times the respondent in the heat of exasperation may also have retaliated or raised her hands by itself is no ground to grant relief of divorce. If a lady finds herself in a helpless situation and is absolutely exhausted on account of everyday trouble in the house then, at times being a woman, may retaliate, but that by itself will not constitute an act of cruelty so as to entitle the husband for a relief of divorce. The expression “cruelty” as envisaged under Section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes being treated with cruelty, whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision. It is the cumulative effect of all the acts and conduct which has to be taken into consideration for finding out, whether the behaviour of the erring spouse falls within the ambit of cruelty as envisaged under Section 13(1)(ia) of the Act. What may amount to cruelty in one case may not amount to cruelty in another case. The Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and the manners of the parties. Cruelty may consists of a single act or conduct of the respondent or it may consist of a series of acts, none of which by itself can be said to constitute cruelty but in their totality they may amount to cruelty. The mere fact that the erring spouse is moody, whimsical, irritable, inconsiderate, etc., will not be sufficient to amount to cruelty. Similarly, merely neglect or want of affection, expression of hatred will not be a conduct constituting cruelty. The idiosyncrasies of the wife some time may not amount to cruelty, even though they make the husband unhappy. There may be occasions where the conduct of wife may lead to unpleasantness but such unpleasantness alone will not amount to cruelty and this may reasonably fall within the ambit of ordinary wear and tear of matrimonial life which is not sufficient for establishing cruelty as envisaged under the Act. However, in matrimonial life, acts and conducts amounting to mental cruelty abound and have some times more devastating effect than the acts of physical violence.
From the evidence on record, we find that the respondent happily got married with the appellant and from the said wedlock, a son was also born. We do not find anything from the evidence to even remotely suggest that something was wrong at the end of the respondent, which ultimately became the apple of discord between the appellant and the respondent. The marital life got completely disturbed in a span of three years. What is more shocking is to learn that even after living separately for years together, as and when there has been an occasion in the family of the appellant, the respondent has visited the house and has stayed with the appellant under one roof for days together. What does this suggest. We are also not forgetful of the fact that the appellant and the respondent are in their late 60s. Though the age of the spouses may not be the only factor, but it can be one of the factors to be taken into consideration before granting relief of divorce. The parties have reached at a age when they should shoulder each other's problems and difficulties in life, but the husband is adamant to seek divorce at this age and that is evident from the record that he is trying to take advantage of his own wrong.
The Apex Court in its decision in the case of V. Bhagat v/s. D.Bhagat (Mrs.), reported in AIR 1994 SC 710, had observed as follows:
"......Mental cruelty in Section 12(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made "
In its decision in the case of S. Hanumantha Rao v/s. S.Ramani, reported in AIR 1999 SC 1318, the Apex Court had observed as follows:-
".......Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(i- a) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party "
".............the appellant cannot be allowed to take advantage of a wrong done by his wife of which he himself was responsible. In such a case the appellant cannot be allowed to complain that his wife is guilty of
committing an act of mental cruelty upon him, and further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and he is not expected to live with his wife "
In its decision in the case of Chetan Dass v/s. Kamla Devi , reported in AIR 2001 SC 1709, the Apex Court while considering the implication arising under Section 23(1), clauses (a)(b) and (e) of Hindu Marriage Act, had observed as follows :-
"............Learned counsel for the respondent submits that in certain situations, relief would be denied to the petitioner where it is found that he is taking advantage of his own wrong for the purposes of making out a case to obtain the decree. He has drawn our attention to Section 23(1), clauses (a), (b) and (e) of the Hindu Marriage Act which are quoted below :
"23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that -
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub- clause (c) of clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) to (d) xxx xxx xxx xxx (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly."
"...............Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to a corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrongdoer, and walk away out of the matrimonial alliance on the ground that the marriage has broken down. Lest the Institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrongdoer who, by hear, wished such an outcome by passing on the burden of his wrongdoing to the other party alleging her to be the deserter leading to the breaking point "
In the case of Shobha Rani v/s. Madhukar Reddi, reported in AIR 1988 SC 121, the Supreme Court made reference to the well-known case of Dr.N.G.Dastane v/s. Mrs.S.Dastane, reported in AIR 1975 SC 1534. Relevant observations made by the Apex Court in Shobha Rani's case (supra) may advantageously be excerpted below :
“4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it counsel reasonable appreciation that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There must, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. That the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”
It is now well-settled that in the absence of evidence given controverting the fact, mere suggestion in cross- examination to the party making allegation is of no assistance in disproving such allegation.
In this connection, we may profitably refer to the following observations of a Division Bench of this Court in the case of Shri Khimji Kurjibhai v/s. The State of Gujarat, reported in 1982 GLH 977 regarding the effect of only giving suggestion in cross-examination to the opponent without giving any evidence in support of any denial:
“Suggestions in cross-examination are no evidence. This proposition of law is good both in the case of the prosecution and the defence. Mere hurling of some suggestions, which are denied, can hardly take the place of proof or evidence. The law of evidence is alike both for the prosecution and for the defence. If the accused wants to establish a certain fact, he has to lead evidence on that score. Such suspicions cannot have any place in the realm of appreciation of evidence. A suggestion denied by a witness remains only a suggestion and has no evidentiary value at all.”
On consideration of the entire materials on record, we are thus convinced that it is the appellant who can be said to be at fault and is trying to take advantage of his own wrong. Even if the stray incidents of cruelty as a result of retaliation to the harassment at the end of the husband as alleged by the appellant against the wife are believed, by itself will not constitute an act of cruelty so grave so as to grant the relief of divorce.
We, accordingly, do not find any good reason to disturb the judgment of the learned trial Judge, rejecting the petition for divorce.
For this reason, the Appeal fails and the same is hereby dismissed.
On the facts and in the circumstances of the case, there shall be no order as to costs.
(Bhaskar Bhattacharya, Acting C.J.)
(J.B.Pardiwala, J.)
/moin